And yet the cops sometimes can be remarkably blasé about the whole thing. Calvo was right: what seems extraordinary, chilling even, to us “civilians” is just business as usual to the police. Scarlata was asked why he didn’t conduct more investigation before sending a SWAT team into the Tomsic-Calvo residence, why he didn’t even google the name Cheye Calvo. Scarlata’s reply: the SWAT invasion was his investigation. “In order for me to determine if the recipient of the parcel … is involved or not involved,” and to “gather evidence … in a manner that is safe to the officers … that is the technique and tool that I use … And I don’t know another way that I could have done that without utilizing that tool.” When Sagin was questioned about why he shot at the dogs, he explained, “[T]here was no time for me to transition from my submachine gun to using pepper spray.” But—Calvo’s lawyer followed up—what about Georgia Porter, who was in the line of fire—what was done to protect her? Responded Sagin: “That wasn’t an option.”26

  The question we all need to be asking is why it’s business as usual for government forces, using urban warfare tactics, to be bursting into American homes some fifty thousand times a year. Why are police regularly executing warrants by battering down doors, using diversionary flash-bang grenades, and carrying weaponry well beyond what the job plausibly requires in most instances? What’s occurring in large- and small-town America, says Calvo, too often looks like footage from a “war zone,” from “Afghanistan or Iraq.”27

  A FAILURE OF OVERSIGHT

  There’s a reason this is happening, and Cheye Calvo, after all his investigation, was able to put his finger right on it. It wasn’t the cops’ fault, he decided. As much as he wanted to, he could not hate them or blame them; they were just doing their jobs. Rather, the problem was a complete failure of “leadership,” of “oversight.”28

  The mistake we make, Calvo concluded, is that we “rely on the police to oversee themselves.” We only get involved after the fact, to “blame someone, or fire someone.” Our goal, he suggested, should not be “to get people who do things that are bad”; it should be to “prevent them from doing things that are bad” in the first place. And to do that we need to “challeng[e] the police, not because they are bad people, [but] because we live in a place where government working successfully is based on checks and balances.”29

  In leaving the police “to oversee themselves” we abandon time-honored checks and balances, and thus violate the most bedrock principle of democratic governance. We are given to saying that we have a government of laws, not of men. These words were penned by John Adams, who enshrined them in the Massachusetts Constitution of 1780. While the phrase was catchy, the idea was common. Common Sense, even. In the revolutionary pamphlet by that very name, Thomas Paine explained, “[I]n America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”30

  Making the law king, rather than the other way around, means having rules in place—instructions, if you will—telling those who run things what they may and may not do. Consider the familiar slogans of democracy, things like government must rest on the “consent of the governed” or “officials are accountable to the people.” These things can’t happen without rules—public, democratically approved rules—telling those who police us what is in and what is out.31

  From matters as mundane as getting a driver’s license to more complex ones such as curtailing greenhouse gases, America is governed by rules. Government officials cannot act without reasonably clear legislative authorization. If the legislature delegates power to those officials, they must develop their own rules—rules we can all read and see, comment on and challenge—regarding how they will exercise their power. Absent some unanticipated emergency, the rules must be put in place in advance of action, not offered as post hoc explanations, so that we—and courts—can measure what the officials did against the yardstick of what they were told they could do and what they said they would do. This is what it means to be a government of laws, in which officials are accountable to the people they serve.32

  Yet ironically, when it comes to policing, we have forsaken this very basic principle. Ironically, because policing—the use of force and surveillance to govern society—is the most grave and threatening of all the governmental functions. That much should be clear by now. If the person who issues driver’s licenses gets out of line, it is not likely to destroy anyone’s life. There’s time to correct things. But not so with policing. The use of force and coercion, surveillance and spying, these are serious, serious matters. And yet, of all of government, we have left police agencies, which utilize these weapons on a regular basis, to do as they wish without publicly vetted rules.

  Although there are of course some statutes in place, overall there is remarkably little legislative direction for America’s policing officials. The typical enabling statute of a policing agency simply authorizes it to enforce the criminal laws on the books in the broadest of terms, saying little or nothing about what methods the police are permitted to use in doing so. Take the FBI. A federal statute creates a Bureau of Investigation within the Department of Justice and authorizes the Attorney General to appoint officers to “detect … crimes against the United States.” That is pretty much it. The New York City charter tells police to “preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs, and insurrections, disperse unlawful or dangerous assemblages [and] protect the rights of persons and property.” That’s awfully wide authority, and there’s not much additional legislative direction.33

  What is needed is a thoughtful, thorough set of instructions telling police officers and agents how to exercise their incredibly broad discretion. Discretion’s an important and unavoidable part of policing, but it can and should be guided by rules. Can a cop set up a roadblock just anywhere? Or are there guidelines for when and where and how, and a chain of command for approval? Can anyone caught using drugs be flipped and turned into an informant? Or should there be limits on using juveniles, or putting people in harm’s way? When should SWAT teams be called out? How should they be trained and equipped?

  What happened to Cheye Calvo—especially his two Labradors being shot—happened because of a gaping lack of government rule making. Although the team understood it was “common” for drug dealers to have “aggressive dogs,” there were no rules or instructions governing what to do. None of them had received any animal training. When the commander on the scene realized there were dogs present, he improvised, handing Sagin pepper spray. It was not standard issue. When these same guys were busy being regular PG County cops, they carried a variety of nonlethal force, such as pepper spray, batons, Tasers. It was regulation. But on the SWAT team there were no regulations, they made their own decisions about what to carry, and nonlethal tools were apparently not high on the list.34

  Time and again during the depositions in the Calvo case, Cheye Calvo’s lawyer asked this question: Were there any “rules, regulations, policies, or general orders” governing what the officers did? His point was: Had anyone authorized what happened? Had anyone thought about it in advance and made rules to ensure things went properly, that people were not injured? And time and again the answer was no. No on the constant deployment of force to serve warrants on civilians; no on the training; no on the preparation to deal with animals; no on the equipment to be used.35

  WHY THE BUCK GETS PASSED

  It’s no accident that things are this way. It is not like we just forgot to adopt rules to govern policing. There are structural forces at work that cause us, as a society, to leave the police free to do as they will. At best we tell ourselves the courts are doing the job—though as we will see in the next chapter, they can’t and they don’t. So the police are left minding their own shop.

  Legislatures avoid regulating the police because they don’t see any advantage in doing so. Consider matters from the perspective of your ordinary lawmaker. When legislators make laws, they create winners and losers. People who, come reelection time, will be friends or enemies. When deciding what legislative agenda to pursue—and what to leave alone—there is an ongoing calculus of how this is going to play at the polls.36

  Legislative politics is all about being organized. The people who have something big at stake get together and lobby the legislature, letting them know what they’d like done—and what they’d like left alone. This lobbying process informs lawmakers of just which friends or enemies they are likely to be making if they pass a particular bill. As a consequence, the unorganized multitude sometimes takes it on the chin. That’s what people mean when they talk about “special interests” winning out.37

  When it comes to policing, the most organized interests are the police themselves—and their close cousins, prosecutors. Police unions, in particular, are very powerful. When laws are proposed that affect policing, these groups jump into action. Prosecutors and police officials knock on lawmakers’ doors, or testify in legislative hearings. Their goal in lobbying is to be left alone to do their jobs: more power and less regulation. From the mission-driven perspective of police and prosecutors this only makes sense.38

  On the other hand, the people affected by policing aren’t usually as organized—or organized at all. It’s no secret that the heaviest burden of aggressive policing falls disproportionately on the shoulders of minorities, on the less well-off. Those folks always struggle in the legislative process. But the problem goes well beyond that. You might think, “What happened to Calvo could happen to any of us.” It could. The problem is we don’t tend to think about that until after the fact, but by then it is too late.39

  To the extent most people worry about policing at all, it usually is a generalized concern about being a crime victim. For the last fifty years or so—even at times when crime rates were falling—the bugaboo of American politics has been crime and the fear of crime. And so legislators have made their careers and ensured their continued tenure by being “tough on crime,” engaging in “zero tolerance,” and enacting laws like “three strikes and you’re out.” 40

  Given societal fear of crime, you can see why lawmakers are reluctant to take steps that tie police hands. No one wants to go into an election with their opponent running ads saying they’ve been soft on crime.41 If legislators do something to regulate the police—even in the smallest of ways—and then something goes wrong, they are open to the charge that the latest horrific crime was their fault.42

  After the raid on his house, Cheye Calvo actually managed to get passed the very mildest form of police regulation; the story of that law is an object lesson in all that is wrong here. Calvo, who had worked with the legislative process throughout his professional life, thought a good starting point would be a law requiring reports on how often SWAT teams mustered. Perhaps if that information were public, SWAT overuse would be kept in check, or the people would respond with some other measures. But it was a struggle getting even this baby step passed; law enforcement fought it tooth and nail. Eric Sterling, the head of the Criminal Justice Policy Foundation, noted that “[i]t took raiding the mayor and killing his dogs and their being completely innocent white people to get relatively minor legislative action … and there was [a] very decided knee-jerk law enforcement opposition to it.” That law isn’t even on the books anymore; it expired in 2014 and was not renewed.43 Apparently it was just too much for Maryland law enforcement to keep track of how many SWAT raids occur.

  Some may shrug off legislative neglect of policing, arguing there is accountability in the system. Many sheriffs stand for election. Mayors or city councils can let their police chief go. The head of the FBI serves at the will of the president. The idea seems to be that if something is wrong with policing, these police officials will lose their jobs.44

  In truth, though, this sort of electoral accountability only exacerbates the problem. Elected officials are the obvious targets of society’s anxiety about crime. If crime rates go up, the voters get angry, and mayors or other elected officials find their jobs in jeopardy. Thus, mayors sensibly take it as their job to hold down crime, and are likely to give the police free rein so long as that is the case.45

  Rarely—rarely—is it the case that a mayor gets asked to toughen up on the police. In 2013, Bill de Blasio was elected mayor of New York, in an election that was very much about policing, particularly the use of stop-and-frisk on people of color. But how many elections can you think of in which the candidate ran against aggressive policing? Even in New York, it took years of media attention to the practices of the NYPD to get there. And de Blasio, as mayor, still needs the police. A year after his election, the country was treated to television images of ranks of police turning their backs on him, a problem he has had to work hard to remedy.46

  All of us would prefer to avoid responsibility for what the police do. And most of us can be forgiven for just wanting to go to bed at night knowing our families are safe. For not asking a lot of questions.

  The problem is that our elected officials aren’t doing the job of supervising the cops either. And while it may be that those officials would rather play the ostrich when it comes to policing issues, it also is completely unacceptable. It violates our most fundamental principles. And it is a large part of the reason for why things go wrong.

  POLICE POLICING THE POLICE

  There is another solution available: the police could make rules to govern themselves. That, actually, is the primary way that most executive agencies are brought within the rule of law. Legislatures are too busy to write all the rules that government needs to function. So they pass laws telling executive officials in broad strokes what they are supposed to accomplish, and delegate power to those officials to write their own rules.47

  There would be some real advantages to police writing their own rules. Courts and legislatures often grant law enforcement officials deference based on their expertise; to the extent they possess it, they are in the best position to write rules for themselves. Besides, the police will be more inclined to follow their own rules. As one advocate for police rule-making put it years ago: “The police, organized in a semi-military tradition, work in that tradition’s responsiveness to going by the book, which is always less grudging if one has a role in writing the book.”48

  There was one brief moment in this country’s history when the idea of police rule-making was fashionable. In the 1950s, amid complaints that policing was not doing its job, the American Bar Foundation—the research arm of the national lawyers’ organization, the American Bar Association—set out to study the problem, sending many researchers out into the field. But by the time the researchers were recalled to home base some thirteen weeks later for “clean-up” retraining, it was clear to everyone involved that everything they thought they knew about policing needed to be tossed in the trash. The first night out in the field in Milwaukee, the ABF investigator spent the night with on-duty cops drinking in bars. In Detroit, the investigator saw “police routinely breaking into buildings to obtain evidence or make arrests,” as well as “harassing homosexuals” and setting the “whore squad” loose on prostitutes. In Pontiac, Michigan, police officers were observed beating and severely injuring an African American who took pictures of them while bowling, as part of an Urban League effort to identify officers associated with “police brutality.” 49

  Participants in the ABF study were surprised—one hardly can understand today how this was news—to learn that as police went about their daily duties, they exercised a tremendous amount of discretion. Contrary to the “top-down” image of professional policing so prominent in that period, it turned out the real rules were made “bottom-up” by patrol officers. This was confirmed in study after study that followed on the ABF project’s heels.50

  Once discovered, the concern about police discretion continued unabated, playing prominently in the 1967 report of President Johnson’s Crime Commission, which suggested rule-making as the antidote. The Commission pointed out that “[f]ew legislatures and police administrators have defined in detail how and under what conditions certain police practices are to be used.” Thus, “[t]he need for legislative and administrative policies to guide police through the changing world of permissible activity is pressing.” The Commission recommended that “[p]olice departments should develop and enunciate polices that give police personnel specific guidance for the common situations requiring exercise of police discretion.”51

  The notion that police forces must operate subject to rules quickly won prominent adherents. Noted academics and judges argued for police rule-making. Lawyers and criminologists at Boston University partnered with the Boston Police Department to draft and implement rules on various investigative procedures; a second group of academics at Arizona State worked with representatives from police departments across the country on still another model rules project. The American Law Institute and the American Bar Association both drafted sets of model rules and principles to guide the police.52

  Ultimately, though, the rule-making movement fizzled. Part of the reason undoubtedly was that as crime rates continued to climb and the country took a more conservative turn after the Johnson years, arguments for more constraints on policing largely fell on deaf ears. But—for the reasons we’ve just seen—it turned out that no one was really motivated to govern policing, to insist that police be governed by rules, and to provide the resources necessary to make this happen. And so the problem of vast police discretion persists.53